Bridging the Separation of Powers

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Kevin R. KosarAugust 18, 2015

The separation of powers is a hallmark of democratic systems. Power is divided among different branches or units of government. The legislature legislates, the executive executes and the judiciary judges. Even in parliamentary systems, where the head of state is a monarch or subservient to the parliament, there tends to be a functional division between courts, agencies and lawmakers. For better or worse, this division affects the popular view of the relationship between public administrators and legislators.

Separation of powers is a concept that cropped up in response to 17th century concerns about absolutist government. Thomas Hobbes argued that citizens had to obey their government no matter what it did. To disobey, he wrote in Leviathan, would plunge humanity back into a “perpetual war of every man against his neighbor,” which is the very state of nature that mankind sought to escape through the creation of government.

However, later theorists drew a different conclusion. Erecting a powerful government created a peril at least as great as the state of nature. Thinkers such as John Locke and Baron Montesquieu argued that despotic government might be avoided if government power was placed in a different set of hands. James Madison, who had a major role in producing the U.S. Constitution, justified the separation of powers thus:

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Marvelous as the separation-of-powers theory is, it comes with implementation costs. Separating the branches encourages rivalry and often contemptuous attitude, particularly between the legislative and executive branches. Legislators view themselves as the bureaucrats’ bosses and guardians of the public interest. Administrators and civil servants see themselves as apolitical experts who take oaths to dutifully carry out the law. Legislators often disdain bureaucrats, accusing them of being slow, stubborn and unaccountable. Civil servants and administrators, for their part, look upon elected officials as politicos and amateurs at governance. To keep a relative peace, the two sides take the view that lawmakers shall not meddle in administration and bureaucrats shall advocate policy. “Never the twain shall meet.”

Of course, governance suffers when legislators and administrators keep one another at arm’s length. Consider, for example, the findings of a new study on federal regulation. Congress frequently writes laws directing agencies to issue rules by a particular deadline. Over the course of 20 years, federal agencies missed half of these 1,400 deadlines. That is an eye-popping finding, but is it any wonder? Bureaucrats rarely assist Congress when it is writing laws, so legislators have little sense of what is a reasonable deadline. The Patient Protection and Affordable Care Act (“Obamacare”) had some deadlines that were a mere 90 days after enactment of the law.

The quality of regulation suffers from too strict an adherence to the separation of powers. Congress has no formal role in the development of regulations. When agencies issue final rules, no congressional committee reviews them as a matter of course. Nor does our national legislature vote on regulations, as many state assemblies do. Congress does not even have a formal system for tracking whether its demands for new rules have been fulfilled.

At the federal level, the legislative and executive branches are almost entirely estranged. The president produces a budget, which Congress typically ignores in favor of producing its own. Congress passes a law and then leaves it to agencies to make the rubber hit the road. Each week, the president makes policy by issuing memoranda and the like. If Congress views the president’s actions as contrary to law, then the third branch will referee the dispute.

At a recent gathering of women state legislators,Teri Quimby, who has worked for both Michigan’s legislative and executive branches, suggested elected officials should take field trips to bureaucracies. Doing so would enable lawmakers to better comprehend agencies’ capacity to achieve whatever goals are legislated.

It is a fine idea, but I would go further. More coordination between the branches might reduce the number of policy errors and make the inter-branch relationship less inimical. Bridging the separation between those who write the laws and those who implement them will improve governance. The two rivals—the elected officials with their fresh ideas and sense of the public’s needs and the long-serving, experienced agency wonks—need to work together.

Goodwill is not enough. Bridging the separation of power will require developing processes and forums that force inter-branch collaboration in policymaking. The REINS Act, which the House of Representatives recently passed, would force Congress to vote on certain regulations before they take effect. Congress and the president also might devise a “Kill List” process, whereby they could jointly identify failed programs for elimination.

Surely, there are more ideas out there. I invite readers to send them to me.

Author: Kevin R. Kosar is the director of the governance project at the R Street Institute, a think-tank in Washington, D.C. He was a federal employee for more than a decade. He can be reached at [email protected].

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